Defendants in the ongoing Jan. 6, 2021, Capitol Breach trial suffered a defeat on Monday, as the court ordered that the defendants may not cross-examine an FBI agent for most of the defense attorneys’ allegations that spawned from internal FBI messages inadvertently leaked in court.
Judge Timothy Kelly, a Trump-appointed judge, on Monday addressed allegations made by attorneys of the Jan. 6 defendants that targeted leaked internal FBI messages, which were revealed in court when Nick Smith, a defense attorney representing Ethan Nordean, cross-examined FBI Special Agent Nicole Miller on Thursday last week.
The judge denied all but one of the defendant’s arguments about the leaked messages. That leaves a narrowed space for the defendants to maneuver should they wish to upend the trial based on these messages alone.
Leaked Messages in the Crosshair
The leaked messages emerged when Smith showed in court hidden rows in an Excel spreadsheet provided to him by the DOJ, which contained thousands of lines of correspondence among FBI agents—mostly addressed to Agent Miller—in the agency’s Lync system. The files were “hidden” via a “filter” function in Excel, according to a Thursday filing by Nordean.
These messages include a directive from FBI personnel to Miller to “destroy” 338 pieces of evidence and another directive to Miller to “edit out” an FBI agent from a Confidential Human Source (CHS) informant report, the filing read.
Since last Thursday, these internal messages were the focus of defense attorneys, who alleged that the messages showed that the DOJ altered evidence, violated due process, and intruded on the defendants’ rights to counsel by monitoring the defendants’ communications with their counsel.
Based on these allegations, the defendants’ attorneys made a range of requests to the court, including the appointment of a special counsel to review the messages, further cross-examination of Agent Miller about these messages, and dismissal of the case altogether.
By Gary Bai
